A Divided Court(?)

This week at the United States Supreme Court saw eight opinions in the argued cases (leaving 28 cases still to be decided). The actual opinions raise questions about the ability of the Supreme Court to function with only eight justices. Since the actual discussions between justices occur in private, it is hard to tell whether the decisions reflect divisions on the merits or just a tendency to only decide what absolutely needs to be decided. However, in several cases this week, the Supreme Court — having taken review on a broad issue — issued a very narrow decision sending the case back to the lower court to re-examine the broad issue.

The biggest of these decisions was on the contraceptive mandate in the Affordable Care Act. In an unsigned opinion, the Supreme Court followed up on its post-argument order requesting briefing on “alternative accommodations.” The gist of the opinion was that the Supreme Court does not want to decide if any of these alternatives is viable or required (or if the current regulation sufficiently accommodates the religious objections of the non-profits). Instead, based on the response of the parties, the Supreme Court is returning the cases to the lower courts to consider the new issues raised by that supplemental briefing. In other words, the Supreme Court decided not to decide this issue (at least until there are nine justices). In a companion order, the Supreme Court also sent back the other pending cases on the contraceptive mandate that it had placed on hold pending its opinion in the argued cases.

The other two cases involved standing on claims related to the Fair Credit Reporting Act and fees on civil rights cases. In both cases, the Supreme Court sent the cases back to the lower court to consider other issues not clearly resolved by the initial opinion.

There are five to six weeks of opinions left. It will be interesting to see if this week’s pattern continues. Given how few cases actually reach the Supreme Court, the number of cases potentially impacted by the vacancy is already significant. If we have four or five more cases in which the Supreme Court declines to address the core issue underlying its grant of review or affirms by an equally divided court, it will be clear that the vacancy is causing serious harm to the Supreme Court’s ability to function. Similarly, the continued crawl (no new cases this week) in granting review for cases in the fall is becoming an issue. If the Supreme Court will only be hearing twenty (instead of the usual thirty cases) in the Fall, it will be hard for Republican Senators to explain that their refusal to fill the vacancy is having no impact on the Supreme Court.